The traditional picture of military discipline placed a wide range of decisions in the commander’s hands. For most offenses, a commander surveys the options on a disposition ladder, from no action, to administrative measures, to nonjudicial punishment under Article 15, to preferral of charges and referral to a court-martial. For sexual offenses under Article 120, however, that picture changed fundamentally. A reform that took full effect across the armed forces on December 28, 2023 removed the charging decision for covered sexual offenses from commanders and placed it with independent military prosecutors. Understanding the current answer requires separating what commanders no longer decide from the disposition judgment they still exercise for other misconduct.
The major change: the Office of Special Trial Counsel
The 2023 reform created an independent Office of Special Trial Counsel in each service, staffed by specially trained judge advocates who report through their service’s special trial counsel chain rather than the operational chain of command. For a defined set of serious offenses, called covered offenses, the special trial counsel, not the commander, now holds the binding authority to decide whether to prefer charges, refer the case to court-martial, and negotiate any resolution. Article 120 rape and sexual assault are covered offenses, as are related attempts, conspiracies, and solicitations of those offenses.
The practical consequence is significant. A commander confronted with a credible report of an Article 120 offense does not weigh charges against nonjudicial punishment as a matter of personal discretion. The matter is referred for investigation, and the prosecutorial disposition is made by the special trial counsel after reviewing the evidence. The reform was designed precisely to remove the commander from this decision, to insulate it from real or perceived unlawful command influence, and to make charging judgments more consistent and professionally driven.
Nonjudicial punishment is generally unavailable for these offenses anyway
Even before the special trial counsel reform, nonjudicial punishment was a poor fit and largely off the table for serious penetrative sexual offenses. Nonjudicial punishment is designed for minor offenses and carries only limited consequences. A serious sexual assault is not minor, and disposing of such an allegation through Article 15 would be inconsistent with policy that channels these cases toward courts-martial. Under the current system, the disposition authority for a covered Article 120 offense lies with the special trial counsel, which forecloses a commander from quietly resolving such an allegation through nonjudicial punishment.
What the commander still does
The commander retains an essential, but reframed, role. Upon learning of an allegation, the commander must ensure it is reported and investigated through the proper channels, must attend to the safety and support of the victim, and may take lawful, non-punitive protective measures such as a military protective order, a no-contact order, or a change in duty assignment. The commander also retains authority over collateral matters and over non-covered misconduct that may surface in the same investigation. Administrative actions independent of the prosecutorial decision, such as a relief from a position of trust, remain within command purview, subject to the rule against actions that would unlawfully influence the prosecution.
The disposition analysis for offenses that remain in command hands
For offenses that are not covered offenses, commanders still make the classic disposition decision, and the framework is instructive for understanding how the system reasons about charging versus nonjudicial punishment. A commander, advised by a judge advocate, evaluates factors including the nature and seriousness of the offense, the strength of the admissible evidence, the interests of good order and discipline, the offender’s record and rehabilitative potential, the views of any victim, and the range of likely outcomes at each level. Nonjudicial punishment is appropriate for minor offenses where the limited sanctions it offers will serve discipline; preferral of charges is appropriate where the seriousness of the conduct, the strength of the evidence, and the interests of justice call for a court-martial. The commander must select the lowest disposition consistent with the ends of justice and good order and discipline, while never using nonjudicial punishment to dispose of conduct too serious for it.
Why the distinction matters
The bottom-line reason a commander does not choose between Article 120 charges and nonjudicial punishment today is structural. Congress and the services concluded that decisions to prosecute the most serious offenses, including sexual assault, should be made by independent legal professionals rather than commanders. For an Article 120 covered offense, the decision belongs to the special trial counsel, and nonjudicial punishment is not an available substitute. For other misconduct, the commander still exercises the disposition judgment, balancing seriousness, evidence, and the interests of discipline and justice.
Bottom line
For a covered Article 120 sexual offense, a commander no longer decides between preferring charges and initiating nonjudicial punishment. Since December 28, 2023, that prosecutorial authority rests with the independent Office of Special Trial Counsel, and nonjudicial punishment is not an appropriate vehicle for such offenses in any event. The commander’s role shifts to reporting, victim support, lawful protective measures, and management of collateral and non-covered matters. For offenses that remain within command disposition authority, the commander, advised by counsel, weighs the seriousness of the conduct, the strength of the evidence, the offender’s record, and the interests of good order and discipline to choose the appropriate level of action.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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